Citation Nr: 9903623
Decision Date: 02/09/99 Archive Date: 02/17/99
DOCKET NO. 98-05 496 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to service connection for bilateral hearing
loss.
2. Entitlement to an earlier effective date for an increased
evaluation for chronic sinusitis prior to February 10, 1997.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
K. K. Enferadi, Associate Counsel
INTRODUCTION
The veteran had active service from December 1953 to August
1957.
The issue as to entitlement to service connection for
bilateral hearing loss arises before the Board of Veterans'
Appeals (Board) from a January 1998 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) that
denied service connection for hearing loss. As to the issue
of entitlement to an earlier effective date, this matter
arises before the Board from an August 1997 rating decision
that increased the evaluation for the veteran's sinusitis to
30 percent effective from February 1997.
FINDINGS OF FACT
1. The veteran has not submitted competent medical evidence
of a nexus between current bilateral hearing loss disability
and his period of service.
2. The evidence reflects that from December 27, 1996, there
was an ascertainable increase in the symptomatology related
to the veteran's service-connected sinusitis.
CONCLUSIONS OF LAW
1. The claim of entitlement to service connection for a
bilateral hearing loss is not well grounded. 38 U.S.C.A.
§§ 1110, 5107(a) (West 1991).
2. An effective date of December 27, 1996 for the assignment
of 30 percent disability rating for service-connected
sinusitis is warranted. 38 U.S.C.A. § 1155 (West 1991); 38
C.F.R. § 3.400 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Pertinent Law and Regulations
In well grounded cases, service connection may be granted for
disability arising from disease or injury incurred in or
aggravated by active service in the Armed Forces.
38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303
(1998). Service connection may also be allowed on a
presumptive basis for certain disabilities, including
sensorineural hearing loss, if the disability becomes
manifest to a compensable degree within one year after the
veteran's separation from service. 38 U.S.C.A. §§ 1101,
1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309
(1998).
Entitlement to service connection for hearing impairment is
subject to other requirements under 38 C.F.R. § 3.385 (1997).
The threshold for normal hearing ranges from zero to twenty
decibels, and any reading higher than twenty indicates some
degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155
(1993). However, under VA law, service connection may only
be granted for impaired hearing when the auditory threshold
in any of the frequencies of 500, 1000, 2000, 3000, or 4000
Hertz reaches a level of 40 decibels or greater. Also,
impaired hearing will be considered a disability if the pure
tone threshold for at least three of the frequencies 500,
1000, 2000, 3000, or 4,000 Hertz are 26 decibels or greater,
or when speech recognition scores utilizing the Maryland CNC
test are less than 94 percent. 38 C.F.R. § 3.385.
The United States Court of Veterans Appeals (Court) has held
that there are three basic evidentiary requirements to
establish a well grounded claim for service connection: (1)
a medical diagnosis of a current disability; (2) medical, or
in certain circumstances, lay evidence of an inservice
occurrence or aggravation of a disease or injury; and (3)
medical evidence of a nexus between an inservice injury or
disease and the current disability. Caluza v. Brown, 7 Vet.
App. 498, 506 (1995); see also Epps v. Gober, 126 F.3d 1464
(Fed. Cir. 1997), aff'd sub nom. Epps v. Brown, 9 Vet.
App. 341 (1996). The Court has further held that the second
and third elements of a well grounded claim for service
connection can also be satisfied under 38 C.F.R. § 3.303(b)
(1998) by (a) evidence that a condition was "noted" during
service or an applicable presumption period; (b) evidence
showing post-service continuity of symptomatology; and (c)
medical or, in certain circumstances, lay evidence of a nexus
between the present disability and post-service
symptomatology. See 38 C.F.R. § 3.303(b); Savage v. Gober,
10 Vet. App. 488, 495-97 (1997).
The nature of the veteran's issue determines the quality and
quantity of evidence necessary to satisfy the statutory
burden of establishing a well grounded claim. Grottveit v.
Brown, 5 Vet. App. 91, 93 (1993). If the determinative issue
turns on the particular factual circumstances, for example,
whether a particular injury occurred, lay testimony will
suffice to establish a well grounded claim as long as the
other elements are satisfied. Espiritu v. Derwinski, 2 Vet.
App. 492, 494 (1992).
A well grounded claim is a meritorious claim, capable of
substantiation. Murphy v. Derwinski, 1 Vet. App. 78 (1990).
The claim need not be conclusive; however, the allegations
must be supported by credible and competent evidence. Tirpak
v. Derwinski, 2 Vet. App. 609, 611 (1992). The Board notes
that for the sole purpose of determining whether a case is
well grounded, the corroborating evidence is presumed to be
true. King v. Brown, 5 Vet. App. 19, 21 (1993). However, a
diagnosis based solely on the veteran's unsubstantiated
history cannot form the basis of a valid claim. LeShore v.
Brown, 8 Vet. App. 406 (1995).
The effective date of an evaluation or a claim for increase
is the date of receipt of that claim, or the date entitlement
arose, whichever is later. 38 C.F.R. § 3.400 (1998). The
effective date of an award of increased compensation is the
earliest date as of which it is ascertainable that an
increase in disability has occurred, if application is
received within one year from such date. 38 C.F.R. §
3.400(o)(2) (1998).
The general rating formula for sinusitis falls within
38 C.F.R. § 4.97, Diagnostic Codes 6510 through 6514. For
chronic frontal sinusitis, a rating of 30 percent is allowed
upon demonstrating three or more incapacitating episodes per
year of sinusitis requiring prolonged (lasting four to six
weeks), antibiotic treatment, or, more than six weeks non-
incapacitating episodes per year of sinusitis characterized
by headaches, pain, and purulent discharge or crusting. An
incapacitating episode of sinusitis means one that requires
bed rest and treatment by a physician. 38 C.F.R. § 4.97,
Diagnostic Codes 6510 through 6514 (1998). In order to
warrant the next higher and maximum rating of 50 percent, the
veteran must show radical surgery followed by chronic
osteomyelitis, or near constant sinusitis characterized by
headaches, pain, and tenderness of affected sinus, and
purulent discharge or crusting after repeated surgeries. Id.
II. Factual Background
Service connection
The veteran's service medical records include an examination
at enlistment dated in December 1953 and an examination at
separation dated in August 1957 that report hearing as normal
at 15/15 bilaterally. Otherwise, the veteran's service
medical records are negative for any findings or complaints
related to hearing loss. Thereafter, a review of the record
reveals a VA examination conducted in January 1998. The
results of that examination are as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
N/A
40
35
30
25
LEFT
N/A`
25
40
50
45
Speech audiometry revealed speech recognition ability of 84
percent in the right ear and of 92 percent in the left ear.
There are no further pertinent data of record.
Earlier Effective Date
A review of the record reveals that the RO granted service
connection for sinusitis in a rating decision dated in March
1958, and assigned a 10 percent evaluation effective from
September 1957. Of record at that time were the veteran's
service medical records that included an entry dated in
September 1955, which noted that the veteran was treated for
severe frontal sinusitis on the right side. An x-ray study
conducted contemporaneously confirmed acute sinusitis.
Thereafter, in October 1995, the veteran claimed increased
symptomatology related to his sinusitis and requested an
increased evaluation. Private medical outpatient records for
treatment generally dated from 1995 to 1996 include
references to long-term sinus problems, by history. In
particular, a report dated in March 1996 notes possible
chronic sinusitis. The 10 percent rating was confirmed by
rating action of February 1996.
The veteran requested an increase in the rating assigned in a
statement in March 1997. Evidence added to the record
includes a private physician's statement dated in December
1996, which reports that the veteran had been experiencing
increased symptoms of sinus congestion. Thereafter, a
hospitalization report for admission in January 1997 recites
the veteran's history with respect to chronic sinusitis, and
notes that the veteran became ill with increased symptoms.
The evaluator reported that a CT scan of the sinuses
demonstrated substantial abnormalities.
A January 1997 examination by an otolaryngologist revealed
the veteran's long history of sinus troubles. The physician
reported the presence of chronic rhinosinusitis with polyps
in both middle meatuses on nasal endoscopy examination. An
examination conducted in February 1997 noted tenderness over
the sinuses; the physician rendered a diagnosis of pneumonia
with underlying bronchiectasis and underlying bronchospasm
all due to paranasal sinuses. Subsequently, the veteran was
hospitalized for pneumonia and sinusitis, in pertinent part,
as reflected in a discharge summary dated in February 1997.
III. Analysis
Service Connection
With regard to the issue of entitlement to service connection
for the veteran's bilateral hearing loss, the evidence in
this case does not demonstrate that the veteran's current
hearing loss is related to his period of service in any way.
Specifically, the record does not contain any medical
evidence of a nexus between any incidents or diseases related
to hearing loss coincident with the veteran's period of
active service. As stated above, upon presentation of
competent evidence to establish a nexus between his current
disability and evidence of injury, incident, or disease that
occurred during his period of service, the veteran will
establish a well grounded claim. Alternatively, if the
veteran does not produce competent evidence of current
disability causally linked to an inservice incurrence, his
claim necessarily fails. Caluza at 506.
In this case, the evidence of record does not support current
disability causally linked to service in any manner. As
noted above, with respect to examinations conducted in
December 1953 and in August 1957, the reports state that the
veteran's hearing was normal at 15/15 bilaterally. Further,
there is no mention, or any notation, in examination reports
of any treatment or diagnosis related to hearing loss during
the veteran's period of service. Additionally, the veteran's
service medical records are void of complaints or findings
related in any way to hearing loss. Thus, the veteran has
not provided evidence of inservice incident or event related
to hearing impairment, and in this respect, has not
established a well grounded claim.
Furthermore, the veteran did not submit evidence of hearing
loss manifested within the one-year presumptive period. As
stated above, in addition to service connection on a direct
basis, service connection may also be allowed on a
presumptive basis for hearing loss, if the disability becomes
manifest to a compensable degree within one year after the
veteran's separation from service. 38 U.S.C.A. §§ 1101,
1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Competent
evidence to demonstrate disability means medical evidence,
and not merely lay testimony. Grottveit v. Brown, 5 Vet.
App. 91, 93 (1993). Id. The Board notes that the veteran
has not provided evidence of medical expertise or
qualifications so as to render an opinion as to diagnosis or
causation medically competent. Thus, his statements that he
had chronic ear problems in service and that after service,
he was treated for the same hearing problems, constitute lay
testimony, and as such, are not competent evidence sufficient
to establish a well grounded claim. In fact, the evidence of
record does not corroborate the veteran's statement, because
there is no evidence to show that the veteran underwent post-
service hearing evaluations at anytime before January 1998.
In this regard, therefore, the veteran has not met his
statutory burden to establish a well grounded claim.
38 U.S.C.A. § 5107(a).
Furthermore, even if the veteran demonstrated an inservice
incident, he has not shown evidence of a nexus between such
injury and current disability. As with medical diagnosis,
where an issue involves questions of whether current
disability is related to service, the veteran must present
competent medical evidence. Grottveit at 93. Absent such
evidence, the veteran's claim necessarily fails. Caluza at
506. In the present case, the veteran's record does not
reflect any cognizable evidence of a relationship between an
inservice injury and current disability. In this vein, the
veteran's statements that his hearing loss is due to acoustic
trauma does not constitute competent evidence in that medical
evidence is required to establish a nexus. Grottveit at 93.
Thus, the veteran's claim in this respect fails.
The Board notes that for the sole purpose of determining
whether a case is well-grounded, the corroborating evidence
is presumed to be true. King v. Brown, 5 Vet. App. 19, 21
(1993). However, in the present case, overall, the veteran
has not provided any pertinent treatment records to
substantiate his service connection claim. Further, as
stated earlier, he has not provided evidence of inservice
injury or disease to show a nexus between his current
bilateral hearing loss and his period of active service.
Thus, the Board concludes that the veteran's claim for
entitlement to service connection for bilateral hearing loss
is not well grounded and must be denied.
Earlier Effective Date
Initially, in view of the evidence of record, including the
veteran's evidentiary assertions that must be presumed to be
true for purposes of determining whether his claims are well
grounded, the Board finds that his claim is plausible, and
thus, well grounded within the meaning of 38 U.S.C.A. § 5107
(West 1991). King v. Brown, 5 Vet. App. 19 (1993). The
Board also finds that all relevant evidence has been obtained
and that the duty to assist the claimant is satisfied.
As stated above, the veteran initially was granted service
connection for his sinusitis disorder in a rating decision
dated in March 1958, and was assigned a 10 percent evaluation
effective from September 1957. Subsequent to that rating
decision, the 10 percent assigned remained in effect until
the rating decision dated in August 1997, at which time, the
veteran was increased to 30 percent effective from February
1997. The Board recognizes that the veteran submitted his
most recent claim for an increased rating for his sinusitis
in March 1997. At that time, the veteran reported that he
had been experiencing sinus drainage over the past several
years, that, on several occasions, culminated in bouts with
pneumonia. Based on his increased symptomatology, the
veteran contends that he is entitled to an effective date
prior to February 10, 1997 for an increased evaluation for
his sinusitis.
Essentially, the veteran argues that his evaluation should
have been increased from the time in which he claimed
increased symptomatology referable to his sinusitis in his
claim dated in October 1995. As noted above, the effective
date of an award of increased compensation is the earliest
date as of which it is ascertainable that an increase in
disability has occurred, if application is received within
one year from such date. 38 C.F.R. § 3.400(o)(2).
Furthermore, "evidence in a claimant's file which
demonstrates that an increase in disability was
'ascertainable' up to one year prior to the claimant's
submission of a 'claim' for VA compensation should be
dispositive on the question of an effective date for any
award that ensues." See Quarles v. Derwinski, 3 Vet.App.
129, 135 (1992).
As to the veteran's assertions that he filed a claim in
October 1995 for an increased rating related to his
sinusitis, the Board does not doubt his assertions. However,
at that time, the veteran did not provide any evidence of
ongoing or increased symptomatology referable to his
sinusitis. The treatment records of 1995 and 1996, cited by
the veteran, reflect a history of sinusitis but do not
reflect active symptomatology warranting a higher evaluation.
Thus, an increase in his disability was not "ascertainable"
within one year of that claim. 38 C.F.R. § 3.400(o)(2).
The Board acknowledges that the veteran did submit evidence
of an increase in his disability in December 1996 through a
private physician's statement that noted increased complaints
of sinus congestion. Further, directly thereafter, the
veteran presented a report from a CT scan of the sinuses, in
which the physician rendered an impression of chronic
bilaterally hypoplastic maxillary sinuses, and sinusitis
involving the right frontal sinus, partially hypoplastic and
irregular in appearance. Following this report, in February
1997, the veteran underwent a surgical procedure related to
his sinusitis. Thus, the veteran has presented evidence of
increased symptomatology associated with chronic sinusitis as
of December 1996.
After careful review of the record and consideration of the
veteran's claim, the Board has determined that an effective
date prior to February 10, 1997 is warranted. Analysis of
the case shows that on December 27, 1996, the veteran sought
treatment for complaints related to his sinusitis as noted in
the aforementioned physician's statement. As indicated
earlier, the applicable regulation provides that the
effective date for the award of an increased evaluation will
be the earliest date as of which it is factually
"ascertainable" that an increase in disability had
occurred, in this case, December 27, 1996, if the claim is
received within one year from such date. Thus, in light of
the above, and in recognition that the veteran submitted a
claim dated in March 1997, well within one year from
submission of relevant medical evidence, the Board concludes
that this veteran is entitled to an effective date for a 30
percent evaluation from December 1996.
ORDER
Entitlement to service connection for bilateral hearing loss
is denied.
An effective date of December 27, 1996 for the award of a 30
percent evaluation for service-connected sinusitis is
granted, subject to those regulations governing the award of
monetary benefits.
V. L. Jordan
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
- 11 -